Former federal prosecutor Mark Godsey is a law professor at UC Law and the co-founder and director of the Ohio Innocence Project, which has secured the freedom of 29 people on grounds of innocence who together served more than 525 years in prison for crimes they did not commit.

On April 20, Marion Correctional Institution, an Ohio state prison, became the largest known source of COVID-19 infections in the U.S., according to the New York Times, with one in five confirmed COVID-19 cases tracing back to the state’s prison system.

Amanda Knox

What is the coronavirus situation in Ohio and particularly in Ohio detention centers?

Mark Godsey

Governor DeWine was one of the governors to move to flatten the curve and was very aggressive about it. We were one of the first states to go in lockdown. But he’s talking about slowly opening businesses up on May 1. So, it’s just a very confusing time, because we haven’t completely flattened the curve, and I think we’re shifting to, “Well, we can’t kill the economy, so we’re going to try to manage the illness and open the economy as best we can.” It’s very confusing. But the situation in Ohio prisons is awful. I think Ohio is the only state that has done widespread testing. They picked two prisons, Marion and Pickaway, and I think about 80% of the prison population there tested positive. Which is a shocking number, but not surprising if you consider the fact that they’re just breeding grounds for infection, with all these people packed together in tight circumstances with very little sanitary conditions or anything like that. I mean, our client who we just got out, who’s innocent, was telling us, while he was still locked up, there’s no hand sanitizers, there’s no soap, people aren’t wearing masks. It’s like the coronavirus doesn’t exist. So 80% in those two prisons where they did widespread testing, I believe 14 so far have died. So it’s a very sad situation.

Amanda Knox

Do you think that Governor DeWine is taking appropriate steps to protect prison populations?

Mark Godsey

He’s the only governor, the only state where they’re doing widespread testing, at least in a couple of places, and I think they’re trying to expand that. So that’s a positive. Other states are pointing at Ohio saying, “We don’t have this problem. We don’t have as many prisoners testing positive.” Well, you’re not doing the testing! That’s a ridiculous argument. But I think that what we’re seeing here reflects the problems with our mass incarceration model that we’ve been living under for three decades. We have so many people locked up that don’t need to be locked up. We’re spending so much money on locking these people up. We’re throwing them together in a petri dish. So, is he doing enough? Well, I’m thankful that he’s doing testing at some of the prisons. He’s only let, I think, 80 people go on early release. In an ideal world, I would start doing mass releases of anybody at high risk that’s in for a non-violent crime or has already served a significant amount of time. I guess that’s Pollyanna. They’re not going to do that. I wish he would. But maybe when this is all over, it’ll help us sit back and realize that all these people don’t need to be locked up, because if a pandemic happens, and for the first time we scratch our heads and go, “Well, we can let this person go, we can let this person go.” Well, you could have let them go before, right?

Amanda Knox

Releasing more people because they don’t need to be there, what opposition is there to that kind of step being taken?

Mark Godsey

I don’t think that we’ve seen the opposition because, to see that, he would have to announce that he’s getting ready to release you know, 15,000, 20,000 prisoners. If he did that, then the opposition would come out banging drums. You know, the Prosecutors Association and the different law enforcement groups. But since he has taken very few steps, the opposition hasn’t needed to raise their voices yet.

Amanda Knox

How do Ohio prisons compare to prisons throughout the country?

Mark Godsey

I would guess fairly typical. Like many places, they’re overcrowded. There are about 150% more inmates in each facility that it was designed for. That makes the situation that much worse. Our clients are telling us that hand soap and sanitizer and masks and stuff like that are not widely available. And our client, Chris Smith, who we just got out, who’s innocent, he’s only 39 years old, but he has very high blood pressure, and the medicine that he has to take for it compromises his immune system. He was afraid to leave a cell to go to the chow hall because no one was enforcing social distancing roles. People were touching him. He doesn’t have hand sanitizer. So he was down to having somebody try to get him a bag of Ruffles and eating in his cell for days on end because of that fear.

Amanda Knox

Tell me about this client of yours.

Mark Godsey

Sure. So, 13 years ago, an AT&T store was robbed at gunpoint by a guy wearing sunglasses, a wig, and a T-shirt pulled over his mouth like a mask. Chris became a suspect because it was his girlfriend’s car that was used in the robbery. When they talked to him about it, the detective said, “Well, we found the costume worn by the perpetrator.” Chris immediately said, “Good. DNA test it. It’s not me. I always loan the car up to other people. So does my girlfriend. I know who was driving it that day. It’s not me.” The state went forward and got a couple bad eyewitness IDs from people that were at a distance, and got a conviction. The trial attorney was asking for the DNA results throughout the entire trial, and they waited until they got the conviction, then turned them over, and it showed the person he had loaned the car to was all over the costume, and Chris’s DNA was not there. It was what we call a Brady Violation. They’re required to turn over exculpatory information, as the Court of Appeals later said, that contradicted and undermined the state’s theory of the case. But they held it and suppressed it. Even with that, it took 12 years of fighting through the state courts, who refused to do anything about it, and then the federal courts, all the way to the Sixth Circuit that said, “Yeah, this is a Brady violation,” and sent it back down for the lower court to release him. That was almost a year ago. It had been sitting on the lower court’s desk, and then COVID-19 hits, and he’s high risk. So he starts freaking out. We’re like, “Listen, he shouldn’t even be there to begin with. He’s won his case almost a year ago.” We filed emergency motions and asked the judge to speed things up and fortunately the judge did. He finished the paperwork and ordered him released. The state fought it the entire time, moved him to a county jail where it’s even less safe. In the meantime, we’re filing emergency notices with a judge saying, “Look, they’re not following your order.” The judge issues another order saying, “Release him now.” They still ignore it. The judge starts a contempt investigation to possibly hold the state actors in contempt, which is still ongoing. And finally, on April 14th, a state judge said, “What are you doing? Look at this order from the federal judge. We got to release him and let him go.” But they held him for five additional days and increased his risk during that time period. It’s just shocking to the conscience. It’s unbelievable, the inhumane behavior, just ignoring a federal judge and increasing the person’s risk.

Amanda Knox

How is he doing now?

Mark Godsey

We rented an Airbnb for him to go into a 14 day quarantine. We got him a cell phone and an old computer so he can FaceTime and Zoom with people. He’s reconnecting. He’s a musician and had just sold a couple of songs ― he’s a rapper ― right before he got wrongfully locked up. He wrote hundreds of songs in prison. And he was able to go into the studio under social distancing and sanitary conditions and record a couple songs.

Amanda Knox

That’s awesome.

Mark Godsey

Yeah, he’s thrilled about that. It’s a weird situation to come out to, where he wants to get a job, but the economy’s dead. He doesn’t really have anyone to support him. We’re working with different nonprofits to try to find a job and housing arrangements and things like that.

Amanda Knox

Well, in the hopes of launching his rap career, where can we find his music?

It’s not just us. It’s Innocence Projects all across the country. People who’ve basically already won their cases on innocence grounds, but the courts are so slow that they’re just still sitting there, like Chris Smith was. Innocence Projects are rushing around trying to get these people out. We have another one in that same condition who is 82 years old. He’s been in for 46 years. He’s high risk because of his age. We’ve been filing these motions like, “Hurry up, hurry up. Let’s finish this.” It was another clear Brady violation. And the judge said that he’ll resolve the case quickly, but we’re still waiting. I know there’s one in New Orleans, like Chris Smith, the state is opposing it and he’s still not out. There’s one in Kansas City that’s like that. There’s one in Philadelphia where even the prosecutor agrees he should be out and he’s high risk, but the judge isn’t letting him out. So the coronavirus is really exposing a lot of the problems with mass incarceration that some people couldn’t see before. But it’s also really exposing how sometimes the criminal justice system is so inhumane and doesn’t really consider these individuals as human beings. As we put in our filings for Chris Smith, you know, he’s not a piece on a game board. He’s an actual human, and we have to act like human beings and not bureaucrats when we’re talking about this. But the system is so conditioned to acting bureaucratically, and not really in a humane manner, just following their preconceived notions. It’s hard to shake them out of that.

Amanda Knox

It sounds like in some cases, it’s just bureaucratic indifference. But in Chris Smith’s case, the prosecution was ignoring the official bureaucratic order.

Mark Godsey

Yeah. We did a filing, where we said, “This court responded in a humane manner in response to a global pandemic, and sped things up and let him out, but the way the state is responding is totally inhumane.” It’s craven. I’ve never had to write a brief like that before. People talk about the breakdown in the rule of law, that we’re sort of losing respect for the rule of law. And so many parts of our democracy rely on custom and practice and people acting in good faith. Judge Black, who issued this order to release him, doesn’t have an army. He can’t force them to do it. They recognized that Judge Black doesn’t have an army, so they just flip their middle finger at it and refused to let him out. This is inhumane, it’s craven, it’s heartbreaking. It doesn’t reflect well on humanity when somebody not only doesn’t recognize one of the principles of our democracy, that you have to follow a court order, but turns it on its head. The court order from the federal judge was humane and talked about the COVID virus, and how he was high risk, and how he’s going to let him out immediately because of this. So they not only didn’t follow the letter of the order, but they didn’t follow the spirit either. They turned it on its head and moved him to a more dangerous environment. It really is exposing a lot of the bureaucratic, inhumane ways that we treat people in the criminal justice system.